Rivera v. Lynch, No. 16-3225 (7th Cir. 2017)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Seventh Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Seventh Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Rivera, a 58‐year‐old citizen of El Salvador, has resided unlawfully in the U.S. for 35 years, having immigrated illegally. In 2014, having fought off a previous deportation effort, Rivera was convicted of possessing a “forged instrument” and the government reopened removal proceedings. An immigration judge denied Rivera’s requests for asylum, withholding of removal, or relief under the Convention Against Torture, rejecting Rivera’s claim of fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, based on his long residence in the United States. Rivera conceded that nobody in El Salvador had ever threatened him or his family and expressed uncertainty about whether the Salvadoran government would be able to protect him from gangs. He denied any fear that he would be harmed by the government itself. The IJ noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth.” The Board of Immigration Appeals and Seventh Circuit affirmed. Rivera did not present convincing evidence that he was in any danger.
Download PDF
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3225 JOSE ALBERTO RIVERA, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A092 513 383 ____________________ SUBMITTED DECEMBER 21, 2016 — DECIDED JANUARY 12, 2017 ____________________ Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges. POSNER, Circuit Judge. Jose Alberto Rivera, a 58 year old citizen of El Salvador who has resided unlawfully in the United States for the last 35 years because he immigrated il legally and has never adjusted his status to that of a citizen or lawful permanent resident, petitions us for review of an order of the Board of Immigration Appeals upholding an 2 No. 16 3225 immigration judge’s denial to Rivera of asylum, withholding of removal, or relief under the Convention Against Torture, and affirming the immigration judge’s issuance of an order removing (deporting) Rivera from the United States to El Salvador. In 2014, after having fought off a previous attempt by the government to deport him, Rivera had been convicted of possessing a “forged instrument” and the government had reopened removal proceedings. He responded, as noted in the preceding paragraph, basing his response on his fear that gangs in El Salvador would seek to kidnap or extort him be cause they would perceive him as wealthy, owing to his long residence in the United States. He told the immigration judge that the gangs “do not care about anything” and “always” harm innocent civilians, whether they have money or not. Yet he conceded that no body in El Salvador had ever threatened him or his family, while recounting the experience of an unidentified Salva doran national with whom he had been detained who told Rivera of having been removed to El Salvador, where mem bers of the MS 13 gang had “threatened” him after he re buffed their attempts to recruit him to traffic drugs. Yet no harm had befallen him. Rivera also testified that about five years ago his sister, who has lived in the United States since the 1970s, visited El Salvador for a few days—without inci dent. And although he expressed uncertainty about whether the Salvadoran government would be able to protect him from the gangs, he denied any fear that he would be harmed by the government itself. The immigration judge noted that the State Department’s “country condition” reports on El Salvador “do not show No. 16 3225 3 that street gangs have specifically targeted El Salvadoran cit izens returning from the United States because of their per ceived wealth,” and noted (essentially repeating Rivera’s statement) that nobody in El Salvador had ever threatened him or his family and that there was no reason to think that the Salvadoran government would torture him or acquiesce in his being tortured by nongovernment actors. And re member that his sister and the unidentified Salvadorian de tainee, each of whom had visited El Salvador after living in the United States, had incurred no harm there. The Board of Immigration Appeals agreed with the Im migration Judge’s assessment of Rivera’s claims, which were weak. Really all he argued was that as a long time resident of the United States he would be perceived in El Salvador as wealthy. That may be correct, and we are dubious (see the concurring opinion in Gutierrez v. Lynch, 834 F.3d 800, 807 (7th Cir. 2016)) of the proposition announced in some cases that the status of being a member of a group made up of indi viduals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed mem bers of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members. But when this is the claim the petitioner must submit evi dence supporting it, as the probability that any given mem ber of such a group would be held for ransom might be ex ceedingly low. 4 No. 16 3225 Although the majority opinion in Gutierrez rejected the petitioner’s argument that he was in danger of persecution because he belonged to a social group consisting of “Mexi can nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico,” 834 F.3d at 805, Gutierrez like Rivera had not presented convinc ing evidence that he was in any such danger—and further more the Immigration Court had found that if he was in danger of persecution if he returned to the part of Mexico in which he had lived before immigrating to the United States “he could avoid [the] harm by relocating to another part of Mexico.” Id. Dominguez Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016), was a similar case. The petitioner feared persecution if re turned to his country of origin because he could afford to pay a ransom, or at least his captors would believe that he (or his relatives in the United States) could afford to pay a ran som. But our opinion does not indicate that he had any rea son to believe that anyone would force him to pay a ransom. So he lost, as did Gutierrez and as must Rivera as well. The point, which is equally applicable to the present case, is that members of well to do coteries or established expatri ate families are not, so far as the record of this case reveals, frequent targets of violence in El Salvador. And unlike ap plicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016), Rivera failed to present any evidence that he is a likely target of violence, despite the likelihood of his being thought wealthy (though by whom is not indicated) by virtue of his long residence in the United States. A disturbing feature of the case, however, is the very high crime rate in El Salvador. See, e.g., Roque Planas, “How No. 16 3225 5 El Salvador Became the World’s Most Violent Peacetime Coun try,” WorldPost, March 4, 2016, www.huffingtonpost.com/ entry/el salvador most violent country_us_56d9e239e4b0000 de4047fbe. (Actually Honduras is believed to have the highest homicide rate in the world—90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, www.unodc.org/ documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_ web.pdf.) But Rivera has not presented convincing evidence of how safe or unsafe he will be in El Salvador. We note finally, for its possible relevance in future cases, that what doesn’t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant’s country of origin is, are wrong in thinking that anybody who’s lived in the United States is likely to be wealthy or have wealthy American connections. If that s what the gangs think, and if (a big if, which requires evidence) as a result they hold de portees from the U.S. for ransom and kill them if it isn t paid, those deportees are being subjected to persecution. We don’t think either a court or the immigration agencies could ra tionally deny that. But it isn’t this case. AFFIRMED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
